Leah, Melissa, and Kate get up to date on the various cases against former President Trump and analyze the arguments being brought in his defense. Plus, they preview the First Amendment cases the Supreme Court will hear this week– including one about the legality of trademarking the phrase “Trump Too Small.”

• Read about the guilty pleas from Kenneth Chesebro, Sidney Powell, and Jenna Ellis
• Read the NYT on Amy Coney Barrett’s remarks at the University of Minnesota and Clarence Thomas’s RV loan
• Read The Washington Post on Judge James Ho’s speech to The Heritage Foundation

Find us on the internet!

• Bluesky: leahlitman.bsky.social, profmmurray.bsky.social, Kateshaw.bsky.social, strictscrutiny@bsky.social, strictscrutiny@bsky.social
• Threads: @profleahlitman, @profmmurray, @kateashaw, @strictscrutinypodcast

 

TRANSCRIPT

 

Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Leah Litman Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Leah Litman.

 

Melissa Murray I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw. And just in time for Halloween, it is First Amendment Week at SCOTUS, so we will preview the First Amendment cases the court will hear this week. But before we do that, we’re going to actually bring you an update on what has been happening with all of the various Trump cases, or at least as many updates as we can fit in, because there have been a lot of important developments just in the past week.

 

Leah Litman First, a content warning. We are recording this episode after the release of 1989, Taylor’s version. And so there will be a lot of Easter eggs in this episode. Melissa, don’t roll your eyes. I can see that. First, what is going on with the Trump cases? The ones where some people are saying it’s a big mistake. It might blow up in your pretty face. Yes, that’s Easter Egg number one. There are a lot of Trump cases. It can be hard to keep up. But we’ve got you. And we are very lucky to have the author of a forthcoming book about the Trump indictments as a co-host. Of course, I’m talking about Melissa’s forthcoming book with Andrew Weissman, The Trump Indictments. So just as a reminder, there are four cases involving potential criminal liability for Trump personally, two federal cases and two state cases.

 

Melissa Murray And I should say right now, after this last week, I don’t necessarily feel so much like an author as I do like an editor, because I have been frantically editing this manuscript to keep up with that grand pace of change as this dynamic landscape unfolds. But this landscape, the first one, anyway, has been pretty interesting to watch. So in addition to the four criminal trials, which we’re going to get to, there’s actually a civil case, a civil trial against the Trump Organization that’s going on in New York City right now. But we won’t talk about this one as much. But I do want to highlight some big things here in this New York City case.

 

Leah Litman The Welcome to New York, Tish James version.

 

Melissa Murray Yes, Tricia’s version. Exactly. So here’s the update on this New York case. So, one, it’s a civil trial. So it’s not a criminal trial. It’s a civil trial. And it’s actually the second part of this longer litigation. The court first entered summary judgment for the state of New York, and that means basically the court said that the evidence that thus far had been presented could only support one conclusion, that the state of New York would win on its claim that the Trump Organization and those who own and operate it, among others, but mostly Donald Trump and his adult sons, John Jr and Eric had engaged in fraud. Specifically, they had inflated the value of their real estate holdings in order to get more favorable tax treatments and bank loans. The judge found that the Mar-A-Lago estate, for example, had been overvalued by wait for it 20 300% in one financial statement. So not really a Scribner’s error like big time fraud. Bigly fraud.

 

Leah Litman Okay. I have a question, though. Do you think it’s possible that Trump was including the financial value of some of the classified information at Mar a Lago, like when he was estimating the value of the estate? Just a question.

 

Kate Shaw This is dangerous Leah because I am afraid that the attorneys surrounding former President Trump going to adopt that and offer it as an argument in defense of their inflated numbers. And honestly, in all seriousness, I wouldn’t be surprised to see them make arguments in that vein in light of some of the other arguments that they have already made, because in the earlier ruling that Melissa just mentioned, finding that there had been fraud, the judge described the Trump legal team’s arguments as glaringly misrepresenting the requirements, as legally preposterous, as misstating black letter law and the assertions he described as nonsense. So that’s the kind of caliber of legal argumentation we have seen. So I guess it’s not a huge surprise that summary judgment was entered against the Trump Organization. But even with that finding, again, that there had been fraud, there are still some remaining issues to be sorted out. And those remaining issues are the subject of the ongoing trial before the judge, and that’s the trial that’s going to determine whether Trump pays a significant penalty or is subject to any other civil sanctions in terms of what could be on the table as potential penalty is New York Attorney General Tish James is seeking $250 million in damages, dissolution of the Trump Organization, an order barring Trump as well as Trump Jr and Eric Trump from serving as officers of any New York state business. The judge also ruled that in the course of this civil fraud trial, Ivanka Trump has to testify against her father, brothers and family business, which, you know, we’re like a few weeks out from Thanksgiving. I think Thanksgiving at Mar a Lago could be really weird.

 

Leah Litman The adult sons will be testifying this week after Thanksgiving. And The Donald is currently scheduled to testify on November 6th. So the judge in the case has issued a limited gag order that bars Trump from speaking publicly about court staff. Specifically, Trump had identified the judge’s clerk in previous posts and now. Has fined Trump for violating the order with the latest episode, resulting in the court imposing a $10,000 fine and ordering Trump to take the stand to explain himself. So I’m sure Trump has learned his lesson, and that’s the last we’ll hear from him.

 

Kate Shaw Clearly. Did you see the check that was cut by Trump’s lawyers law firm? So they actually did pay the $15,000 now aggregate fine.

 

Melissa Murray Was it like the big cardboard check like the publisher’s clearing house like did they deliver it to 60 Center Street? That would be the best.

 

Kate Shaw No, it was it was a normal size, whatever the dimensions of a normal check are. But it was it was striking because it came from the law firm, which felt like ill advised. As a lawyer, I wouldn’t recommend paying those fines.

 

Melissa Murray Well, I mean, I think we’re learning a lot about what is ill advised for lawyers. On that note, let’s continue to the four criminal cases. And just to remind your listeners, we’re going to give you a brief overview of what these four cases are, and then we’ll give you a brief status update in each of them. The first case to be announced with an indictment was the Manhattan DA’s criminal case concerning the falsification of business records. According to that indictment, Trump and the Trump Organization reimbursed Michael Cohen, Trump’s former lawyer and fixer, for payments that Cohen had made to Stormy Daniels in exchange for Daniels staying quiet about her alleged affair with Donald Trump.

 

Leah Litman You search in every model’s bed for something greater.

 

Melissa Murray Please stop.

 

Kate Shaw Okay. But also what song it was, I was.

 

Leah Litman I didn’t come here to make friends. I was born to be a suburban legend, Melissa.

 

Kate Shaw What is the model?

 

Melissa Murray Hi, I’m the problem. It’s me.

 

Leah Litman It’s a Vault track, Kate.

 

Kate Shaw Oh, so that’s why I don’t know yet. Okay, so I have not yet listen to the Vault tracks. I’m sorry, Leah. I’ve made it halfway through. It’s been like a few hours. We are recording this on Friday. The album dropped at midnight. Leah somehow stretches time.

 

Melissa Murray Leah’s been up all night.

 

Kate Shaw Leah clearly has a different relationship with, like, space and time than the rest of us. Like she has listen front and back like an infinite number of times in like 6 hours. It’s incredible.

 

Melissa Murray Let me get back to Stormy Daniels and these payments. So the payments that Michael Cohen made to Stormy Daniels in exchange for Stormy staying mum about her alleged affair with Donald Trump were allegedly made in the lead up to the 2016 election, and ostensibly for the purpose of ensuring that the voting public would not learn about these indiscretions. And so that’s really important because what’s going on here is that the falsification of business records charge, which ordinarily in New York is a misdemeanor, is now being tagged on to this election fraud, whether state, federal, more amorphous kind of charge. And that is what is making it a felony in New York. So it’s a very sort of controversial novel kind of treatment. More about that in the book, the Trump indictments, if you’d like to take a look. But basically the point of all of this is that these payments were made. They were entered into the Trump Organization’s business ledgers, but notably, they weren’t listed as payments to Stormy Daniels for keeping quiet about the alleged affair with Donald Trump. Instead, it just said legal services to Michael Cohen, and allegedly they were not for legal services unless legal services means a wide range of things that we did not learn about in law school.

 

Leah Litman On the other cases, there are lots of updates. So first, a reminder of what those cases are and then the updates. So the first of the two federal cases is the one pending in Florida. This case, brought by special counsel Jack Smith, concerns Trump’s unlawful retention of classified documents at Mar a Lago and his alleged obstruction of the federal government’s efforts to get those documents back. This is the case that Judge Eileen Cannon is overseeing. Then there is the D.C. federal criminal case, also brought by special counsel Jack Smith concerning January six and the efforts to allegedly overturn the results of the election by unlawfully attempting to falsify records and throw out lawfully cast votes. So Judge Tanya Chacon is presiding over that case.

 

Kate Shaw And then finally, there is the second state case. In addition to the New York case Melissa was just talking about. We have the Georgia state criminal case. That’s the one brought by Fulton County D.A. Funny. WILLIS That case is also concerning efforts to overturn the results of the 2020 election. But in this instance, focus specifically on efforts related to Georgia. So there’s a state court judge, Fulton County Judge Scott McAfee, who’s presiding over those cases. And it’s cases rather than case because here there are a lot of defendants, although as we will get to, there are not as many as there were a week ago. Okay. So where to start with the last three? Maybe we will start with the documents case, since in some ways there are the fewest updates there and some.

 

Melissa Murray Why why are there so few updates.

 

Kate Shaw I hate to be uncharitable here, you know that, and yet I cannot but conclude it seems like there’s a chance Judge Cannon is kind of slow walking the proceedings in this case. So we’ll see if that continues. But it is, you know, one very plausible explanation. This is probably the most straightforward of the cases, just because there are already a lot of cases out there about obstruction of justice, about illegal retention of documents and classified. Documents. So it is not an area in which there are a lot of unsettled legal questions. So that’s the law. Then we have the facts.

 

Melissa Murray I think there’s one unsettled legal question, like, can you be president of the United States, lose and then keep all of the documents related to you being president of the United States.

 

Kate Shaw I’m sure his lawyers are making credibly convincing arguments that, no, yeah, that’s all fine and kosher. And yet, unless essentially we’re making some kind of presidential exceptionalism argument about every statute and its application, which again, I’m sure they will, but can’t possibly be right. The settled law seems to be that if the facts are as allege, there were clearly multiple violations of law and so on. The facts there is from the charging document, there is very incriminating evidence, among other things, a recorded conversation where Trump really does appear to admit to a lot of the elements of the crimes that he is accused of. So we do a dramatic reading here.

 

Leah Litman Do you want to be Trump or do you want to be staffer?

 

Melissa Murray I want to be a staffer.

 

Leah Litman I okay, I’ll be Trump. I’ll be.

 

Melissa Murray Okay. Okay.

 

Leah Litman This was done by the military and given to me. I think we can probably. Right?

 

Melissa Murray I don’t know. We’ll have to see. Yeah, we’ll have to try to.

 

Leah Litman Declassify it.

 

Melissa Murray Figure it out. Yeah. Yeah.

 

Leah Litman See, as president, I could have declassified it.

 

Melissa Murray Yeah.

 

Leah Litman Now I can’t. But this is still a secret.

 

Melissa Murray Yeah. Now, we definitely have a problem.

 

Leah Litman Interesting.

 

Kate Shaw Well, I have notes on the delivery Melissa was genuinely mirthful in the laughter. That is the stage.

 

Leah Litman But I think it was more of a nervous laughter.

 

Kate Shaw I think it’s nervous laughter. I think we may need to do another take on that one.

 

Melissa Murray Okay, we. Sorry. Sorry. I thought it was like. Yeah, that’s. Yeah, that’s.

 

Kate Shaw You’re out of your mind.

 

Melissa Murray Okay that’s plausible. Maybe I. Maybe I misread his motivation. You’re right. I mean, I got to go back and think about where is the staffer coming from?

 

Leah Litman Right.

 

Melissa Murray Here, please. Yeah, you’re right. You’re right. All right. I did that badly. But this case, as Kate suggested, is slowly chugging along in a Fort Pierce courthouse. Shout out to Fort Pierce. I grew up in Fort Pierce. Nothing surprises me about this case being brought and tried in Fort Pierce, anyway. It’s slowly chugging along, as the court has very slowly resolved the procedures governing discovery. And so the whole process of discovery is about the government turning over evidence to the defense. The key here, though, is that some of the evidence, i.e. the documents which are going to be the principal forms of evidence in this case, are actually classified. So there are a lot of questions about the kinds of restrictions, limitations that the government wants to impose on who gets to see these documents, largely because the government doesn’t want to see any of this evidence again in bathrooms at Mar a Lago or to have this evidence turned over to the defense and then later have Donald Trump bragging about them and what they say to some unknown dignitary in some foreign country or businessman staying at one of his resorts. So it’s a really kind of tricky thing, you know, what kind of evidence you charge on, because now this evidence has to be disclosed, but it’s also obviously very sensitive information. Another thing that’s going on in this case that apparently is taking Judge Cannon a lot of time to resolve is what’s known as a Garcia hearing. And so a Garcia hearing is one that seeks to sort of deal with potential conflicts in the representation of the various defendants. And here the alleged conflict arose because one of the co-defendants lawyers also represented and may still actually represent some of the witnesses who are likely to be called at trial. That seems to be a problem. More troublingly, some of the lawyers here are actually being paid for by Trump’s PAC. So, again, lots of tangled webs here, but these issues have not been resolved yet. Judge Cannon actually stopped the recent Garcia hearing because in her view, the government was making new arguments that hadn’t previously been briefs so unresolved. But lots of big questions.

 

Kate Shaw And just to take a minute on kind of some larger lessons of the way Judge Cannon is stewarding the proceedings in this case, I think it’s just an indication or a reminder maybe of the power the district courts wield. It is often unreviewable power, although, you know, in the Fifth Circuit, like the judges, the Court of appeals judges seem willing to issue mandamus left and right. So I guess that’s an exception. But in the ordinary course, these regular rulings, pretrial by judges are often unreviewable. So they’re, you know, kind of the final word. And so that’s a tremendous power to possess and to wield. And it is worth noting specifically that in the southern district of Florida, where all of this is proceeding, there are a number of currently unfilled judgeships because Florida’s GOP senators will not sign off on any of Biden’s prospective judges, which means that when a really important trial comes up, there are only a handful of judges to whom the case could even conceivably be assigned. And so a reminder of the power of district word judges, a reminder of the defense ability of this so-called blue slip practice. This were home state senators can block the president’s prerogative to even fill vacancies. And a reminder that it is just unforgivable to leave district court vacancies sitting open. And if changing Senate practices and dispensing with blue slips is what’s required to fill them like that has to happen now. Okay. Also soapbox.

 

Leah Litman Okay, so that’s the Florida case. How about the January six case in D.C. before a judge Chuck INS. Two important developments that we wanted to highlight. One is that Judge chuck in light Judge and Garon in New York, that civil case issued a gag order limiting the things Trump could say out of concerns for witness intimidation, among other things. But Judge Chacon stayed her gag order until the parties submitted briefs to her, and she will decide whether the order should be more permanently stayed until the appellate court, the Court of Appeals could review it. Staying the gag order just means the gag order is not in effect right now, and the question is whether it should go into effect before an appeals court reviews the arguments about it. So after the judge stayed the gag order, Trump had some absolutely unhinged posts on true social, some about Mark Meadows, some about The New York Times, Maggie Haberman reporting on the case and so on.

 

Kate Shaw Do you think that those post an initial gag order and stay, you know, messages by Trump mean that she’s more likely to put it into effect? It seems pretty clearly be the case to me.

 

Leah Litman I would think so, yeah.

 

Melissa Murray You’ve got to wonder about Maggie Haberman, like all that time spent cultivating Donald Trump. And like, in the end, he’s calling you maggot on truth social. Like, was it worth it? Was it worth it? I don’t know. Anyway, speaking of, was it worth it? Notably, the ACLU, which brought a shit ton of challenges against the Trump administration for the four years of that presidency, much of it memorialized in the truly great documentary The Fight. The ACLU is actually filed a friend of the court brief in this case that argues for it against gagging Donald Trump. According to the ACLU, the circumstances here are ones of the highest public interest, and the scope and substance of Judge Chuck Cohen’s limits are too amorphous and vague to withstand a First Amendment challenge. So just going to highlight this for the strange bedfellows. Watch. Like the ACLU stays true to its mission protecting civil liberties all the time. To be very clear, though, even as they issued this brief supporting Donald Trump’s right to speak about this case, the ACLU did note that it was against election denial and the events of January six. So just to be very clear, this is not about support of Donald Trump and everything that he’s done, but more broadly, his First Amendment rights.

 

Leah Litman Still, you know, why do you have to twist the knife, walk away and leave me bleeding?

 

Melissa Murray She’s not done Melissa. She’s not even close to done. And I think we’re watching, my lord. Oh, my God.

 

Leah Litman You can insert Easter eggs if you want. Nothing stopping you.

 

Kate Shaw Don’t stop and don’t change, Leah. All right. We got a lot of substance to get through, though. So the other development in the January six case that we wanted to mention is that Trump filed a motion to dismiss the indictment on a number of distinct grounds. And this joins an effort earlier in October to get the case dismissed on the basis of absolute presidential immunity, which is literally the if the president does it, it isn’t illegal defense, though, that’s already been made. Now, we have a slew of new arguments which we will briefly highlight.

 

Melissa Murray I mean, insert laughter, wait is it nervous laughter or mirthful laughter?

 

Leah Litman So it’s like a combination of nervous laughter given some of the judges on the D.C. Circuit, given some of the justices on the Supreme Court. But it is also laughter at just how ridiculous these arguments are. Yeah.

 

Kate Shaw Yeah, it’s both. That’s like the Trump years is in a nutshell. And this Supreme Court in a nutshell.

 

Melissa Murray I’m going to wager that Judge Tonya Chacon, a Jamaican American, is literally laughing her ass off because it’s just so dumb. Like, I’m with you, Judge Chacon.

 

Kate Shaw They’re bad. These arguments are real bad. Let us let us briefly bring you into the fold, listeners about why they what they are and why they’re so bad. The first is that the prosecution is barred by double jeopardy a provision in the Constitution that prevents you. Okay. You guys are already non nervously laughing.

 

Leah Litman Sorry.

 

Kate Shaw No, it’s right. But let me quickly just describe the argument, which is, okay, so there is double jeopardy. You know, there’s a provision in the Constitution that prevents you from being tried twice for the same offense. And Trump says, the Senate acquitted me for the January 6th offenses and the argument is beyond frivolous. Okay. So Senate trials.

 

Melissa Murray I believe the legal term is dumb as fuck.

 

Kate Shaw Okay.

 

Melissa Murray Right?

 

Kate Shaw Do we want to go dumb for our family? Listeners, maybe. Melody?

 

Melissa Murray Sorry, kids, This is only for mommies and daddies.

 

Kate Shaw To learn sometime just how bad these arguments are. Yeah, this is like. This is this is education is what we’re doing.

 

Leah Litman Yeah.

 

Melissa Murray But. So first, kids, why is this a dumb af argument? One.

 

Kate Shaw Senate trials are not criminal trials is why? So all impeachment can do is to remove you from office and maybe disqualify you from future office holding. Being tried by the Senate does not put you in the kind of jeopardy the Constitution protects you from being subject to twice. And no one in their right mind would think that this prosecution offends double jeopardy. Just no one.

 

Melissa Murray Your right mind in their right mind. Right.

 

Leah Litman Important, important qualification distinction. I also couldn’t help but think of the excerpts from the, you know, McKay Coppins book about Mitt Romney, during which Romney is describing his perceptions about how the Senate trial actually worked. And he basically said, you know, I think we should be acting as jurors and none of my Republican colleagues are acting that way. So another kind of interesting anecdote surrounding this.

 

Melissa Murray Are you suggesting that it wasn’t a trial at all, let alone a criminal trial in which double jeopardy would attach.

 

Leah Litman Multiple independent reasons? You know the motion also says the prosecution violates the First Amendment because, of course, you know, the motion says this criminalizes core political speech in a real banger. Trump’s lawyers say, quote, This is especially true because claims that the 2020 presidential election was rigged or tainted by fraud and irregularity do not involve easily verifiable facts. It’s like they are still on their bullshit, right? Like contesting the 2020 election in these papers. I’m going to do it again. Was it over then and is it over now?

 

Melissa Murray Serious question. If he is actually convicted in this trial and there’s like a pre-sentencing report and all of that, like I mean, it’s this evidence of like refusal to accept responsibility that factors into your sentencing. I think it has to be.

 

Leah Litman I mean, I think there’s a decent argument. Yes. That it could be. Absolutely. I mean, alongside every other post he’s put together on social. Yeah.

 

Melissa Murray I mean, I just think as a lawyer, why would you say something like this in a filing?

 

Kate Shaw They’re just not legal filings.

 

Melissa Murray In your right mind. In their right mind. Okay. Team Trump has also filed motions to dismiss the charges because they say Trump’s actions did not violate the statute. And to be very clear, this is all styled as a motion to dismiss for failure to state a criminal offense. There’s also another motion to dismiss. This one argues that the prosecution is unconstitutional because it is selective and vindictive, specifically that Donald Trump is only being prosecuted because of political bias against him. Because, as we all know, none of the Democrats who tried to overturn the 2020 election are actually being prosecuted. And that shows how selective this is.

 

Leah Litman Yep. QED.

 

Melissa Murray Finally, ABC has reported that Jack Smith gave Mark Meadows immunity for his testimony. And that is meaningful because, as you likely understand, Mark Meadows was literally in the room where it happened, a hat tip to Lin-Manuel Miranda. So he knows some stuff and that immunity might go a long way.

 

Kate Shaw I think this is an enormous deal that Meadows is apparently now cooperating. And yeah, I mean, I think it’s I if I’m on Team Trump and I’m acting rationally, which of course I’m not, but I think there they would be talking about guilty plea conversations with prosecutors. I’m sure they’re not. But this is they’re not this is the kind of development that in any ordinary criminal proceeding, I think would precipitate such conversations.

 

Leah Litman [AD]

 

Kate Shaw Okay. So a lot of developments in the January six proceedings right now. Again, that’s the case pending before a judge. Chuck, in in D.C. The trial date is set for March 4th, which as Melissa’s coauthor, Andrew Weissman, has pointed out, maybe others have, too. But I’ve just heard Andrew make this point that it’s kind of an interesting and maybe not random date. Maybe it was, But that’s the date on which the presidential term started under the original constitution. January 20th is Inauguration Day as a result of the 20th Amendment. But, you know, for the first century plus, March 4th was a really important day for the presidency anyway. So whether or not that’s meaningful, that is the trial date. I think the big question is whether Trump’s efforts to get one or more of these issues up on appeal potentially before the Supreme Court. We’ve mentioned there’s already an appeal pending of the gag order. But as to these substantive motions, you know, a long appellate process could certainly result in dislodging that March 4th trial date. And I think that is just a huge question. If it did get pushed, could it still all happen in advance of the, you know, November election? Could it happen in April or May? I think may be. But I don’t know if all of these developments are really about one thing, Like all of these flurry of filings are about, you know, primarily seeking some delay.

 

Melissa Murray I would love to keep in my mind this idea of Judge Ken as kind of a symbolic queen, making some policy decisions with sort of a grand sweep of history in mind. But it also turns out that March 4th is a Monday and it might just be because of that.

 

Kate Shaw Your coauthor, you guys can have different opinions about this.

 

Melissa Murray All right. That brings us to drum roll, please. The Georgia case in Georgia, not surprisingly, has perhaps been the most eventful case. And I think it was always set up to be the most eventful case, in large part because it had 19 defendants like that was always going to be something of a circus. And not surprisingly, with 19 defendants, you have some defectors and there have thus far been four plea deals in this case, three of which are by three of the lawyers who were allegedly involved in the efforts to overturn the results of the election in Georgia, Sidney Powell, Kenneth Cesaro and Jenna Ellis. And these three pleas are significant for a number of reasons. So first, these are really good plea deals for these defendants. I mean, these are people who are accused of scheming to advance slates of fake electors and unlawfully accessing voting machines to access information about voters like. So just let that sink in. Like they’re literally accused of walking in and commandeering a state’s voting machines and then trying to sub in a slate of fake electors, all in an alleged effort to overturn the results of an election. And yet, in these plea deals, not one of them is being sentenced to any jail time at all. Allison Cesaro both pled guilty to felonies. Powell pled guilty to a misdemeanor, and their sentences involve probation fines, which are pretty minimal, all things considered, and they have to write letters of apology. So, I mean, that’s stuff I make my kids do but whatever.

 

Kate Shaw The fines? Do, you fine them?

 

Melissa Murray The letters of apology. The letters of apology Kate.

 

Kate Shaw Yeah got it.

 

Melissa Murray I am going to start instituting fines, though. That will happen. And probation. But here’s the rub, right? So that’s pretty tender treatment. Probation, fines, a letter of apology. They now have to in exchange for this light treatment, they have to testify truthfully in future cases against their former co-defendants and provide evidence to the prosecution. So guess what? This elite legal strike force team is now the prosecution’s legal elite cooperation team.

 

Leah Litman I’m trying to see the cards that you won’t show. And I mean, they could have some good stuff. You know, as we’ve mentioned, you know, Powell was part of the White House meeting, you know, where Donald Trump was president involving initial plans about whether to go through with these efforts. You know, Hesburgh was, I think, in meetings with Rudy Giuliani, John Ellis as well. And so, again, they could potentially have lots of interesting things to say. These deals also undercut any argument that Trump was merely relying on the advice of counsel and therefore wasn’t in violation of the law, because now you have these lawyers admitting that any representation itself became criminal. And Jack Smith noted this in a recent filing in the January six case, noting that, you know, Trump’s advice of counsel defense just got a lot more complicated because of this. The plea deals could also further speed up the proceedings, since now the Georgia prosecutors and Georgia courts don’t have those trials to actually do. So they could move up the cases against other defendants. There’s kind of an open question as to whether Jack Smith will charge any of these fools with crimes in the January six case or bring a later case against any of them now that they’ve copped to the conduct.

 

Melissa Murray So there it is. Your monster update on the spooky Trump case is. Happy Halloween, y’all.

 

Leah Litman And if that wasn’t spooky enough, while Trump is arguing that the First Amendment gives him a right to throw out lawfully cast votes, it also happens to be First Amendment Week at the Supreme Court. So we are going to briefly preview the cases the court is hearing this week before we shift back to more court culture, because this court is very cultured, kind of like bacteria.

 

Melissa Murray Or yogurt.

 

Leah Litman More like bacteria.

 

Melissa Murray Probiotics, definitely. So first up, let’s talk about a pair of cases. The court is going to hear about whether public officials can block individuals from their social media feeds like Twitter, Facebook or whatnot. The two cases are called link versus Freed and O’Connor, Ratliff versus Garner. And to understand these cases, I think we need a little primer on the First Amendment and something that’s known as the state action requirement. So, Kate, help us out.

 

Kate Shaw I’ll start us off at least so people may be familiar with the idea that the First Amendment means that the government can’t ban speech or speakers just because it doesn’t like their content or the viewpoint of their speech. So the mayor of your city can’t say you can only make speeches in the town square if those speeches praise the mayor’s administration. Right. That’s the basic idea. But the First Amendment only applies to the government. So private entities like private businesses actually can ban speech or speakers they disagree with without running afoul of the First Amendment. A private employer can fire someone or choose not to hire them because of the person’s speech without violating the First Amendment. Although I hasten to add that in both of those cases, there could well be other provisions of law the employer might be violating under some circumstances if they do act in such a fashion. But we’re just talking here about the First Amendment. So all of this is what is known as the state action requirement. In order for the First Amendment to apply, there must be state action. That is, it’s got to be the government doing the thing.

 

Leah Litman And the question in these cases is basically whether there is state action and what is the state action when a government official blocks someone on a private social media platform? And the thinking is, you know, on one hand the social media platform is private and not the government in the sense that the platforms are run by companies that aren’t the government. On the other hand, government officials might create these accounts on those platforms when they perform government functions, whether that’s to engage with constituents, inform the public message, with the public accounts policies or more. So the question here is when does a government official social media account become state action that is subject to the First Amendment such that an official can’t block someone because the official disagrees with that person’s speech?

 

Melissa Murray And to be really clear, this case is about accounts that are created as official government accounts, like at Whitehouse, on Twitter or at podcasts. All of those accounts that you see on social media, those aren’t included here. Government entities, for the most part, concede that if they are the ones creating official government accounts that purport to represent the government, then it is state action. The question here instead is what happens when an individual who holds a government office has an account that they might have created while they were a private citizen or has an account that’s under their name, but that they might use to express personal stuff as well. And, you know, when does that kind of account become public? Because it’s sort of commingled with the person’s activities as a public official. And again, many people are likely aware of how this issue materialized when it came to Donald Trump. Donald Trump use that real Donald Trump handle on Twitter to do all sorts of things that were associated with his administration, including announcing a ban on transgender individuals in the military. And when he blocked critics from that account, lower courts decided that that was a violation of the First Amendment. But the Supreme Court never actually decided the case. So it’s still an open question, but it leads to some of the questions that are being ventilated here.

 

Kate Shaw Right, Exactly. So the key issue here is just how to determine when an individual account of a government officeholder is state action. So what should the legal test look like? One of the parties who is an individual who was blocked by a local government official basically says a social media account is subject to the First Amendment. If the person using that account invokes the pretense of authority or does or says stuff that the law either authorizes government officials to do or where an official is displaying some idea that they are representing the government or acting with governmental authority, and that it’s the kind of the appearance and function of an account that can help determine all of this. The blocked party in the other case frames it in terms of whether the government official is doing their job via social media. If they’re doing their government job, the person says it’s state action. If they’re interacting with their constituents about, you know, things that do fall within the official duties of the position, then that state action and these respondents who are represented by Pam Karlan argue that in this case, these local officials who were school board trustees did use their account to inform and engage with the public about various official duties and then blocked the respondents who are parents in the school district when they raise concerns about things like financial mismanagement and racism in the school district.

 

Melissa Murray And the officials, for their part, are saying that there’s only state action when there is state authority. Which they say encompasses only circumstances where there is a state duty, like something that’s only possible by virtue of having some state power or an official is carrying out some duty or responsibility that is theirs under the law. The United States is participating in this case as an amicus, and it’s arguing that there is state action only when there is an official exercising government authority or performing a traditional government function. And it’s perhaps not surprising that that would be the federal government’s view. It likely wants to protect its own officials ability to block users, and a rule that applies to these local officials would presumably apply to federal officials as well.

 

Leah Litman A few random assorted thoughts about the case. One is, I think it’s just interesting because for me, it depends a little bit on whether you start with a premise like you start by focusing on the social media accounts and the fact that it is a private company or instead you start with the account holders who are government officials. And I feel like that might affect, you know, how you perceive the relevant state action doctrine. But I think also gesturing at what you just said, like it’s helpful to think about both local officials and national ones. You know, it’s harder to imagine a national official getting drowned out or overwhelmed by trolls when they have, like millions of followers. But, you know, a local official Facebook page where some extremely online troll just comments repeatedly from different accounts. So the comments are worthless or there’s a bunch of misinformation on a page or even threats. I mean, these cases involve local officials, whereas a previous one involved a national figure, Donald Trump. So that’s one aspect of the case. The other is just the changing fluid nature of social media. You know, it might be one thing to think about an official blocking someone under the old Twitter where there was more content moderation and tamping down on hate speech, though certainly not adequately. But think about some of the blue checks whose replies get boosted on the new acts. It’s not crazy to imagine some official getting drowned out in the replies again by hateful speech threats, anti-Semitic comments and so on, and the replies essentially becoming unusable because of that. So the changing nature of content moderation and how it platforms content moderation might subject them to more or less legal requirements was actually something that came up last Supreme Court’s term during the oral argument in Google versus Gonzales, when Justice Kagan imagined a platform that promoted defamatory content. So let’s just play that clip here.

 

Clip Or how about an algorithm that looks for defamatory speech and puts it up top, right? And you’re still saying to throw protection.

 

Leah Litman One additional year into acts? It’s interesting to think about how this might affect some justices perspectives on the case.

 

Kate Shaw Yeah, I mean, I’m definitely sympathetic to the concerns about local officials. I mean, I also think that enough online vitriol might not just kind of drown out the ability of local officials to get their messages through to their constituents. It could even be a deterrent to serving in public office or like local office, at least particularly for women, people of color, who get the vast majority of online harassment. And so I definitely do worry about this. But I’m you know, I also think that giving officials. Right, in particular national officials, another tool to manipulate debate and discourse, which blogging really is in a moment of rising anti-democratic threat, like all that makes me really nervous, which is why I do think that this, you know, a distinction between local officials and national officials might be something that might be worth trying to explore, or at least like a narrow decision that really is on its face, kind of limited to the context of local officials might be well-advised here, because I’m just not sure the dynamics are exactly the same as you just mentioned, Leila, when we’re talking about a figure like the president or, you know, a senior member of Congress versus a local school board official, that kind of tools and power sort of distribution between official and constituent are just so different in those two scenarios.

 

Melissa Murray How confident are you, Kate, that the justices are online enough and savvy enough about social media to be able to grasp those distinctions between a national figure with a million followers and a local official with a Facebook page that could be drowned out by online trolls? I mean, I think this is the same question that was raised in Google versus Gonzales. Like, you know, do they even have a firm grasp of what these technologies look like? I mean, maybe some of them do, but I don’t.

 

Kate Shaw I think there’s yeah, for sure. I don’t think it’s the same answer as to all of them. Some of them definitely don’t. But I mean, I think there was like the very rare display of a degree of humility. I think in those cases last term, Google and Tumblr. So I think that maybe they’d lack the sort of relevant knowledge and experience, but maybe they know that. And so they’ll be cautious here where they so rarely are. So I guess that’s the hope.

 

Melissa Murray I’m not shading the justices for not being extremely online. Like, I literally don’t know how Instagram works. So, I mean, I get it. And just like, I think that’s a real like the kind of granularity and the sort of fine grained nuances that you’re drawing. Kate, I just wonder if you’re not someone who participates in these platforms on a regular basis, if you’re going to be able to draw out those distinctions.

 

Leah Litman These are not, in Justice Kagan’s words, the nine greatest experts on the Internet.

 

Kate Shaw I’m sure, Kagan is extremely online.

 

Melissa Murray Wait wait that’s not a Taylor Swift from the Vault lyric?

 

Leah Litman That’s why I wanted to properly attribute it.

 

Melissa Murray Amazing. Amazing. I hope Justice Kagan has gotten control of her catalog from Scooter Braun, and it’s going to be released on all tracks. Good for her. All right. All of these dynamics that Kate and Leah have highlighted make clear that this is going to be a case where you’re going to get some strange bedfellows, odd lineup. So you can imagine a justice thinking, gosh, in an era of less moderation, it would be difficult to effectively use social media to communicate with constituents without that getting messed up with some Newsmax brainwashed, extremely online trolls who you might need to block. That’s definitely something Justice Alito would think. But you can also imagine some of the justices being like, Well, of course, social media shadow bans Republicans and elevates criticism of Republicans and conservatives. So these officials need to be able to block them like definitely something Justice Jackson would say. So all of this, I think, will be exacerbated by the fact that at the very least, I think the justices recognize that many of the most high profile progressives on the national political scene are really adept and savvy users of social media. So I’m thinking of people like AOC and Katie Porter and Maxwell Frost, and maybe that colors how they view a lot of this. But the strange bedfellows theme, I think, really comes up in the amicus briefs that have been filed here. So there is a bipartisan state amicus brief that was filed by Tennessee, Alabama, Michigan and Pennsylvania that argues for a narrow conception of when accounts constitute state action.

 

Kate Shaw Can I just say more of what you were just saying about. Yes, you’re right. I think that the sort of the most successful users of social media are definitely sort of like young progressive Democrats in Congress. And I throw Fetterman in the Senate as well. He’s he and his team are very good. And that just made me think about what Andrea Bernstein said in our conversation last week from ProPublica, where she said when she talked about literally building a, you know, fed SOC for everything, like for sure they’re cultivating like young conservative social media talent. And I’m I’m really scared.

 

Leah Litman We saw how that went so well for the DeSantis campaign on social media talents.

 

Melissa Murray Well, I mean this is like one of the most adept users of social media on the conservative side, if you can call them a conservative, has been Donald Trump. So, I mean, like this idea that it’s only for progressives, I think is like hogwash.

 

Kate Shaw Completely. Okay. So most you just mentioned bipartisan is brief. Let’s also flag an amicus brief from net choice supporting neither party that we wanted to highlight. So nacho cheese is a party to another case. The court is hearing this term about the Texas social media law. We mentioned that case or actually a pair of cases briefly on our last episode. This Texas case involves a law that would essentially require platforms to post certain content from users, even if the platforms wanted to take that content down. And that choice is brief in this case, kind of urges the court to be careful not to suggest that the presence of government officials on a platform transforms the entire platform into state action and thus allows everything on the platform to suddenly be government speech, which would diminish platforms, speech and association rights, including the rights to moderate content. And I should say in the lower court opinions, we said that the Supreme Court never took up the Trump question, but the lower court cases that did find that Trump violated the First Amendment rights of the users he blocked were pretty careful not to say that that meant all of Twitter was a public forum, or that it was really about the kind of the comments in response to particular posts as opposed to the entire platform. And so it’s certainly a distinction that can be drawn. And so I thought it was a useful reminder in that brief.

 

Leah Litman Definitely. One other amicus brief I wanted to highlight, which is from the Electronic Frontier Foundation, a Knight Institute, which represented people who were blocked by Trump. So they had an amicus brief that points out a bunch of examples of officials using social media in furtherance of government functions. The brief also quotes a study that as of 2020, of the 750 members that have served in Congress since 2015, a 711 have had one or more active accounts on Twitter and 712 have had one or more active accounts on Facebook. And it also notes that in addition to like public policy issues and debates, the brief notes that government officials employ social media to disseminate public safety information for natural disasters and manmade crises, among other things.

 

Kate Shaw And there are a bunch of amicus briefs in this case, not surprisingly, and a lot of them are just asking the court to provide some clarity so that officials can know ex ante what will and won’t make an account state action and therefore susceptible to First Amendment analysis.

 

Leah Litman [AD]

 

Melissa Murray Second DAP and First Amendment week at the court is a challenge called Vidal versus Esther, which is a challenge involving a statute limiting trademarks. The statute is section 1052 C That provision says that trademarks won’t issue for marks that have, quote, a name, portrait or signature identifying a particular living individual except by his written consent or the name signature or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow, end quote. And again, I think it’s really funny to think about Melania Trump having anything to do with this, because here the respondent applied for a trademark for the phrase Trump to small and hijinx have ensued. The Supreme Court has had a lot to say about the First Amendment and its application to trademark. So in Metal versus Time and Yankee versus Brunetti, the court struck down two statutes that prohibited the issuance of trademarks based on their viewpoints. So for disparaging marks or scandalous or immoral marks.

 

Kate Shaw In those cases, the court said that these sort of vague prohibitions on issuing trademarks and the denial to these parties pursuant to those vague prohibitions, were unconstitutional under the First Amendment. And the question here is a related one. Just whether this particular statute, which also contains a prohibition on the issuance of marks under some circumstances is also constitutionally invalid. And the answer to that kind of depends on whether you think this law is viewpoint based. That is, you know, based on the viewpoint expressed in the speech or is instead content based. That is like it would prohibit any trademark involving a government official, whether it is celebrating a president or criticizing a president. So viewpoint discrimination really can’t survive under the First Amendment unless maybe the government is talking itself. That’s different. But content discrimination at least conceivably could, although that too, would get reviewed really skeptically. And there are also questions in this case about whether the court should apply a more relaxed form of scrutiny to this law, since trademarks aren’t exactly the same as other kinds of restrictions on speech, but rather limitations on certain forms of benefits. Right. Like specifically just whether other people have to pay you for using the mark, although at least in Metall and maybe also in Yonkers, that argument was rejected. So I don’t I’m not sure I see it succeeding here.

 

Leah Litman Like a majority of justices, I think just said, like, even if that’s true, this is viewpoint discrimination. So it doesn’t matter without necessarily deciding.

 

Kate Shaw Oh, did they not even reach it?

 

Leah Litman Yeah, well, at least some of the justices did, but I don’t think like a majority embraced it.

 

Kate Shaw Got it. Okay. Okay. I had forgotten them. In any event, respondent is represented here by Gupta Wessler. We think this might be the first SCOTUS argument for John Taylor, who’s a partner at the firm. So excited to hear that.

 

Leah Litman And now we are going to go back to court culture because there is even more of it. So we got the Supreme Court’s order in the Louisiana redistricting case. So this is another vote dilution case, this one out of Louisiana, where a court found Louisiana diluted the votes of racial minorities in violation of the Voting Rights Act in drawing districts and ordered Louisiana to create another map that would actually ensure voters of color were represented.

 

Melissa Murray Can I just note that it seems it’s almost like a trend that these states are trying to dilute the votes of minority voters.

 

Leah Litman That can’t be the case, Melissa, because the Supreme Court in Shelby County told me that things have changed dramatically since the 1960s and that we were living in a post-racial society and no longer needed preclearance under the Voting Rights Act. So, you know, I’m just going to go with that. And so the district court, after finding Louisiana, was in violation of the Voting Rights Act, you know, ordered Louisiana to create another map. The Fifth Circuit, however, in particular, judges Ho and Jones were like, you know what? No. So they issued an extraordinary writ of mandamus blocking the district court’s hearing about ordering Louisiana to put together new maps or potentially the court drawing one that raised the very real risk that any new maps would be delayed until they were announced too close to the 2024 election, and therefore that courts wouldn’t allow those new legal maps to be used. Therefore, the voters asked the U.S. Supreme Court to intervene and allow the district court proceedings to continue. However, the Supreme Court declined to do so.

 

Melissa Murray Again, I thought this is the court that protected voting rights. See Allen versus Milligan a major victory for the Voting Rights Act. Anyway, Justice Jackson issued a statement explaining her vote in this case, and she said, look, we are not endorsing what the Fifth Circuit did because how could you? We told the courts that this litigation should be resolved in advance of the 2024 elections. And she said you can read the Fifth Circuit’s order to delay the hearing only until the legislature has sufficient time to consider alternative maps that would be consistent with the VRA. But the legislature, in its papers to the Supreme Court, said it wasn’t going to come up with those new maps so the district court can go ahead and proceed now. And the district court did set a date for a new hearing, but that’s not. Until. Wait for it. February 2024. So the big question is, is that going to be enough time to allow new maps to be drawn before the 2024 election? And if it is, will the Supreme Court agree that it’s enough time and say so? We certainly hope so. But again, all bets are off.

 

Kate Shaw To be determined. Another development, a Georgia court found that Georgia’s maps violated the Voting Rights Act because they also illegally diluted the voting power of racial minorities. That was after holding a trial. And this, at least so far, seems to be the rare instance of Allen versus Milligan and a system of precedent just working the way it should.

 

Leah Litman And Georgia isn’t the Fifth Circuit, so it’s possible that this will be allowed to continue.

 

Kate Shaw You know what? I wouldn’t put it past the Fifth Circuit to mandamus a Georgia.

 

Leah Litman Okay. Yeah. Fair fair.

 

Melissa Murray I mean, didn’t Georgia used to be in the Fifth Circuit, right? I did. It did.

 

Kate Shaw History and tradition supports the Fifth circuit as this.

 

Leah Litman Stop giving them ideas.

 

Melissa Murray In other news, The New York Times reported that Justice Amy Coney Barrett spoke at the University of Minnesota’s Law school. And at that speech she endorsed and ethics code. Specifically, she said.

 

Clip I think it would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we’re doing in a clear way.

 

Melissa Murray So Justice Kagan, who has also expressed support for the justices having an ethics code, had previously alluded to the fact that there are some, how shall we say, holdouts among the justices for considering an ethics code. But it seems here that Justice Barrett is firmly on the side of an ethics code. So that means who are the holdouts?

 

Kate Shaw Oh, I have an idea. Can I go? I look, I don’t know for sure, but I will just mention, apropos of nothing, that The New York Times did report, that a Senate inquiry led by Democratic Senator Ron Wyden in has determined that Justice Thomas did not repay all or potentially any. It’s not totally clear of the loan he was given to purchase his luxury RV. Yes, the vehicle that has been exhibit one in the public story Thomas loves to tell about how he is regular stock. He explains he prefers to hang out in the RV, in Wal-Mart parking lots to gallivanting around the world on private jets and yachts. It reminded me that I have heard Thomas refer to his RV as a land yacht. And I think the spirit, everybody always took that in was he is you know, it’s a send up of people on real yachts for him, an RV as as good as a yacht. But actually what he was saying was like, this really is basically a yacht on wheels and the joke’s on everyone else. So the laughter in brackets is just a different kind of laughter than I that I had appreciated.

 

Leah Litman He prefers the RV to yachts where quote, I don’t have to pretend I like acid rock or that I’d like to be on a mega yacht with important men who think important thoughts.

 

Kate Shaw Oh, he would likes all that. He was ready on that. Yeah, absolutely.

 

Melissa Murray And in other news on the Trump judge speech circuit beat Bob Barnes and Ann Marimow at the Washington Post report that Judge James Ho, not Judge Dale Ho, is a very different judge. So Judge James Ho gave quite the speech to the Heritage Foundation when he was honored with that organization’s Defender of the Constitution award. We think the Heritage Foundation might want to rethink that name because it seems very clear that whoever gets it is not a defender of the Constitution to sweep, but rather just selective parts of the Constitution, right?

 

Leah Litman Yeah, that checks out.

 

Melissa Murray Like. The women and people of color part.

 

Leah Litman Not the lady part. It’s not right. Yeah.

 

Melissa Murray Those don’t get defended for sure. The Second Amendment parts 100%. So yes, in the speech, as Barnes and Mero describe it, Judge Ho railed against those who criticize Originalist as having a backwards view of the Constitution. And specifically, he argued that members of the cultural elite have basically been browbeating originalists and criticizing their approach to the Constitution.

 

Leah Litman So let’s go into some of what he said. So Barnes and Marimow quote the speech as follows quote. We’re not just disagreeing in good faith about the proper meaning of legal terms were fundamentally bad. People who are too extreme for polite society, you know, is what ho said in characterizing, you know, public criticism. He continued, quote, were mean spirited, racist, sexist, homophobic. We’re just trolling or auditioning. We’re unethical if not corrupt. It’s like next time just at me, bro. Like

 

Melissa Murray It does seem pointed. It does seem pointed. Judge Ho maintained that this case. Campaign of condemnation is intentional, as he says. There have been plenty of threats about packing the courts, but there’s no need to pack the courts and you can just pressure the courts and get the same result, end quote. And I just have to wonder, what are these results that we critical liberals have been getting after pressuring the court by calling originalists out on their methodological bullshit? Like, what have we gotten for that? I mean, they still. They’re on it still.

 

Leah Litman Yeah. I’m thinking. I’m still thinking.

 

Melissa Murray Still thinking.

 

Leah Litman Yeah.

 

Melissa Murray So again, I come back to the meth lab of conservative grievance, like, Yeah, like dudes, you’re winning. Like, why are you on this grievance tour? Just take the W.

 

Kate Shaw I feel like Leah’s book might have something to say about all of that.

 

Leah Litman It is disgust.

 

Kate Shaw So we couldn’t resist saying something about how the search for the Republican Speaker of the House relates to the Supreme Court. There are a couple of connections we could highlight. And just as a reminder, in case you’ve been, you know, under a rock for the last week, Republicans ultimately selected Representative Mike Johnson as speaker of the House.

 

Melissa Murray After two months.

 

Kate Shaw It felt like two months. It was not. In fact, to my mind, it was a long time. I’ve aged more than two months for sure. But Johnson is someone whose connections to SCOTUS we want to highlight. So first he signed an amicus brief and on the website formerly known as Twitter, claimed to have led this amicus brief. That is an amicus brief in a case urging the Supreme Court to hear a case in which the state of Texas asked the Supreme Court to basically throw out the results of the 2020 election by in particular throwing out votes in Pennsylvania, among other states. This was this nutty brief in which Texas basically said, we get to ask you, Supreme Court, to throw out the elections in Pennsylvania and Michigan and Georgia and Wisconsin to declare them all unconstitutional and thus clear the way for appointing electors to basically throw the election to Trump. This was even by 2020 election standards, a preposterous argument. And yet, Johnson proudly proclaimed himself the lead author of an amicus brief in support of the effort.

 

Melissa Murray All right. So basically, it seems like we have an election denier as speaker of the House, which seems not super great for 2024. If Republicans plan on attempting to throw out votes and refusing to certify the results of an election if it goes Joe Biden’s way, although the recently passed Electoral Count Reform Act might make that harder, but generally an election denier on the podium is probably not great for democracy. One of the Republicans who supported Johnson, but not Jordan had this to say. The amicus brief is fundamentally different than trying to overturn something on the floor. What he did was he went to the courts. That’s what the courts are set up for. It is absolutely appropriate. I don’t have a problem with writing an amicus brief. If it’s the way it’s the way we should do things in this country is to trust the rule of law and trust our judicial system.

 

Leah Litman What like this is a when it is, sir, like using the courts as a vehicle to launch your loony theories, that doesn’t make them less authoritarian or any less undemocratic.

 

Melissa Murray I just want to note my own personal experience with now Speaker then just Representative Mike Johnson. So I think it was like back in 2018, I testified before a House subcommittee about reproductive rights and he was on the panel. I think at some point Jim Jordan left to burn a jacket or something and Mike Johnson took over for him. And when the hearing was done, he came down to the well to like, shake everybody’s hand. And he applauded me and congratulated me for being so articulate and well-spoken.

 

Kate Shaw Was was there a white lady witness next to you and did he say the same thing to her?

 

Melissa Murray This is all to say this is not the most outrageous thing Mike Johnson has sent. So, at a press conference, a reporter asked Representative Johnson about leading efforts to overturn the results of the 2020 election. And that reporter was actually booed by surrounding segments of the GOP caucus. You can hear it here.

 

Clip Oh, next question. Next question.

 

Kate Shaw The fact that they don’t want to answer that question, is there like a glimmer of hope in there, not sort of saying,.

 

Leah Litman No. No.

 

Kate Shaw We’d do it again? No. Okay. There’s no there’s nothing positive  there?

 

Leah Litman Because they’ll do it and then deny they did it.

 

Kate Shaw Okay. So it’s just gaslighting. Okay. I was just like, there’s at least some shame on display. As as I always hope that is.

 

Leah Litman Not shamr.

 

Kate Shaw What had happened. No, they’re beyond shame.

 

Melissa Murray Beyond shame. And we know that Representative Johnson voted against certifying the results of the 2020 election. So that’s not even the craziest clip involving him. But there’s more. So it shouldn’t be surprising to all of you that not only did he vote to overturn the election in a 2016 interview, he suggested that we don’t live in a democracy but instead in a quote unquote biblical republic. Here’s the clip.

 

Clip You know, we don’t live in a democracy because a democracy is two wolves and a lamb deciding what’s for dinner. It’s not just majority rule is a constitutional republic. And the founders set that up because they followed the biblical admonition on what a civil society is supposed to look like.

 

Melissa Murray And Strict Scrutiny super guest Alexandra Petri had a great column about how Johnson has really betrayed his principles when he accepted the results of his election as speaker. So maybe all of this suggests that he has turned over a new leaf with regard to election denial.

 

Leah Litman So, Melissa, you mentioned Representative Johnson’s comments in the hearing. You testified at about reproductive freedom. He apparently has had several of these hearings because in one, Representative Johnson seemed to make clear he supported overturning Roe versus Wade so that women could give birth to more able bodied workers to support the economy.

 

Clip Roe v Wade gave constitutional cover to the elective killing of unborn children in America, period. You think about the implications of that on the economy. We’re all struggling here to cover the bases of Social Security and Medicare and Medicaid and all the rest. If we had all those able bodied workers in the economy, we wouldn’t be going upside down and toppling over like this. Listen.

 

Leah Litman He has also blamed mass shootings on feminism, no fault divorce laws and Roe versus Wade. Yes, there is tape for that as well.

 

Clip You remember in the late sixties, we invented things like no fault divorce laws. We invented the sexual revolution. We invented radical feminism. We invented legalized abortion in 1973, where the state the government sanctioned the killing of the unborn. I mean, we know that we’re living in a completely amoral society. And so people say, how can a young person go into their school house and open fire on their classmates? Because we’ve taught a whole generation, couple of generations now of Americans, that there is no right and wrong.

 

Leah Litman He previously worked as a lawyer for the Alliance Defending Freedom. You may have also guessed this, but he’s got some views on LGBT equality. So CNN reported that he has supported criminalizing gay sex and has called homosexuality, quote, inherently a natural and a, quote, dangerous lifestyle and said that marriage equality will lead people to marry their pets.

 

Melissa Murray We know that Mike Johnson is not married to his pet. Instead, he is married to an actual woman. And he credited his wife when he accepted the speaker’s gavel. Let’s roll that clip.

 

Clip She spent the last couple of weeks on her knees in prayer to the Lord, and she’s a little worn out.

 

Leah Litman What to say?

 

Kate Shaw I think let’s just leave it there.

 

Leah Litman No comment.

 

Melissa Murray What to say?

 

Leah Litman No comment.

 

Kate Shaw I think that’s best.

 

Melissa Murray Ten out of ten, no notes.

 

Kate Shaw Our last episode highlighted the importance of state solicitor general offices to the conservative legal movement, and in particular for credentialing conservatives and giving them opportunities to make a name for themselves in addition to pushing the law in ever more conservative directions. And there’s news on the state front. So Ohio has a new SG. It is a former lawyer at Jones Day and former law clerk to Justice Alito, Edith Jones, and Judge Roe of the D.C. Circuit. That’s Elliott Gieser. I believe that’s the pronunciation. And if his name sounds familiar, that maybe because he came up several times in the January six committee’s interview with former White House press Secretary Kayleigh MCENANY, who met them at the campaign and consulted with them about whether VP Pence could throw a state’s electoral votes and allow state legislatures to appoint electors to throw the election to Trump. And the questioning seems to convey the questioner’s impression that Geiser had advised MCENANY that VP Pence might have the power to throw out electoral votes. So there’s an election deniers or over throwers really ascending to heights of power. A theme to our last segment today. So as McEnany said again about Geiser, he was an election law attorney and from what I gathered, really loves studying the Constitution and election law. That’s great. That’s just so uplifting. Inspiring.

 

Leah Litman He might have gotten the wrong lessons out of them, but, you know, we’ll put that to the side. As we’ve said a few times on this show. Democracy, you endanger a girl, which is a transition to the fact that North Carolina has adopted a new set of districting maps. Now that both the North Carolina Supreme Court and the U.S. Supreme Court have said Partizan. Gerrymandering cannot be challenged in either state or federal court. The North Carolina legislature’s maps lock in an 11 to 3 or 10 to 4 Republican majority. That is, even if votes split 5050, maybe even if a majority of voters vote for the Democrats, Republicans will dominate congressional representation for North Carolina. This map replaces the court drawn map that produced seven Democratic and seven Republican representatives in 2022. Thank you. U.S. Supreme Court in Russia versus Common Cause, which said federal courts cannot fix partizan gerrymandering. Truly the gift that keeps on giving in making our democracy less democratic. So speaking of democracy, once again, there is a high stakes November coming up and it might not be the November you are thinking of. The media hype has turned to 2024, but that won’t stop 2023 elections from having massive implications for abortion access, voting rights and more. In Virginia and Ohio, early voting has already started. So if you live in those states, you can get ahead on casting your vote now. Visit vote Save America dot com backslash. No off years and get ready to vote. Since we also covered kind of social media transformation at some points during this episode, we wanted to mention where you can find us on some of the other social media platforms. So I will just note that on Blue Sky I am at Leah Litman, that’s at Blue Sky dot social. I’m also on threads but under a different username that is at Prof, P-R-O-F Leah Litman So you can find me at either of those places.

 

Melissa Murray And you can find me Melissa Murray at Prof M Murray at Blue Sky Social and @ProfMMurray everywhere else.

 

Kate Shaw And Melissa, you’re so wise, you use the same handle everywhere. Mine. I couldn’t do that.

 

Leah Litman Mine was taken on Instagram. Yeah.

 

Kate Shaw Who’s the other Leah Littman? Yeah. So I.

 

Melissa Murray Let’s get her.

 

Kate Shaw I did get just, let’s get her. I did. I do have just at Kate Shaw dot blue sky dot social on blue sky and then on threads I’m at Kate A Shaw.

 

Leah Litman So the podcast is also on both of those platforms. So on Threads it is at Strict Scrutiny Podcast and on Blue Sky it is Strict Scrutiny at Blue Sky dot Social.

 

Melissa Murray Follow us so we can block you and it’s not state action. Yet.

 

Kate Shaw Whatever test the court devices, I am confident that we can block you and no one’s ever going to tell us.

 

Leah Litman Oh, I am not so sure, Kate. You just wait until Justice Thomas and Justice Alito get a hold. Yeah, yeah.

 

Melissa Murray Jim Ho and an egg account. Yeah.

 

Kate Shaw There you go again. Before we go, final note, don’t forget to preorder a copy of Melissa’s forthcoming book with Andrew Weissman, The Trump Indictments. You can order that on Bookshop.org or wherever you buy your books. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melodie Rowell. Ashley Mizuho is our Associate Producer, Audio Engineering by Kyle Seglin, Music by Eddie Cooper. Production support from Michael Martinez and Ari Schwartz.

 

Leah Litman [AD]